by the usurped military power,-events so linked together as to form one continuous whole." 95 U. S. 133 [24: 400]. vent military stores, which had been placed | caused by the attack. It was one of a con- In general accord with the opinions above quoted are two cases in this court upon the meaning and effect of the term "dangers of navigation," or "perils of the sea," in a bill of lading. The Mohawk, 8 Wall. 153 [19: 406]; The Portsmouth, 9 Wall. 682 [19: 754]. her off, became disabled by the bursting of was In The Mohawk, a steamboat carrying wheat under a bill of lading containing an exception of "dangers of navigation" "The question is not what cause was near-grounded on the flats, and, in the effort to get est in time or place to the catastrophe. That is not the meaning of the maxim, Causa proxima non remota spectatur. The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster." 95 U. S. 130 [24:399]. "The conclusion is inevitable, that the fire which caused the destruction of the plaintiff's property happened or took place, not merely in consequence of, but by means of, the rebel invasion and military or usurped power. The fire occurred while the attack was in progress, and when it was about being successful. The attack, as a cause, never ceased to operate until the loss was complete. It was the causa causans which set in operation every agency that contributed to the destruc- In The Portsmouth, it was decided that a tion. It created the military necessity for jettison made to lighten a steamboat which the destruction of the military stores in the had been run aground by her captain's negcity hall, and made it the duty of the com-ligence was not within an exception of "the manding officer of the Federal forces to destroy them. His act, therefore, in setting fire to the city hall, was directly in the line of the force set in motion by the usurping power." 95 U. S. 132 [24:399]. "The court below regarded the action of the United States mili- of the sea. tary authorities as a sufficient cause inter[458]vening *between the rebel attack and the destruction of the plaintiff's property, and therefore held it to be the responsible prox imate cause. With this we cannot concur. The proximate cause, as we have seen, is the the sea peril, though that may also be presThis is a prindominant cause, not the one which is inci-ent, and enter into the case. dental to that cause, its mere instrument, ciple alike applicable to exceptions in bills though the latter may be nearest in place of lading and in policies of insurance. and time to the loss. In Milwaukee & St. Though the peril of the sea may be nearer Paul Railway Co. v. Kellogg, 94 U. S. 469 in time to the disaster, the efficient cause, [24: 256], we said, in considering what is the without which the peril would not have been proximate and what the remote cause of an incurred, is regarded as the proximate cause injury: "The inquiry must always be whether of the loss. And there is, perhaps, greater there was any intermediate cause discon- reason for applying the rule to exceptions in nected from the primary fault, and self-op- contracts of common carriers than to those erating, which produced the injury.' In the in policies of insurance, for, in general, present case, the burning of the city hall and ligence of the insured does not relieve an unthe spread of the fire afterwards was not a derwriter, while a common carrier may not, new and independent cause of loss. On the even by stipulation, relieve himself from the contrary, it was an incident, a necessary in- consequences of his own fault." 9 Wall. 684, cident and consequence, of the hostile rebel 685 [19: 755, 756]. attack on the town,-a military necessity a sea dangers of lake navigation," in a bill of lad- neg Generally speaking, the words "perils of the sea” have the same meaning in a bill of ❘ of the explosion; and it was one of a conlading as in a policy of insurance. There tinuous chain of events brought into being is a difference, indeed, in their effect in the by the explosion,-events so linked together two kinds of contract, when negligence of as to form one continuous whole. the master or crew of the vessel contributes The damage was not owing to any violent to a loss by a peril of the sea; in such a action of winds or waves, or to the ship comcase, an insurer against "perils of the sea" is ing against a rock or shoal or other external liable, because the assured does not warrant object; but it was owing to an explosion that his servants shall use due care to avoid within the ship, and arising out of the nathem; whereas an exception of "perils of the ture of the cargo, which cannot be considered, sea" in a bill of lading does not relieve the either in common understanding or accordcarrier from his primary obligation to carrying to the judicial precedents, as a peril of with reasonable care, unless prevented by the sea. the excepted perils. But when, as in the [460]present case, it is *distinctly found that there was no negligence, there is no reason, and much inconvenience, in holding that the words have different meanings in the two kinds of commercial contract. The Portsmouth, above cited; Phoenix Ins. Co. v. Erie & W. Transportation Co. 117 U. S. 312, 322–S. 131 [24: 399]. If damage done by water 325 [29:873, 879, 880]; Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 438, 442 [32:788, 791, 792]; Compania La Flecha v. Brauer, 168 U. S. 104 [42:398]; The Xantho, L. R. 12 App. Cas. 503, 510, 514, 517. As was observed by this court in Etna F. thrown on by human agency to put out a fire Upon principle and authority, therefore, Nor can the damage to the sugar, attributable, not to a peril of the sea, but to the explosion of part of the cargo after the ship had ended her voyage, and had beer finally and intentionally moored at the dock, there to remain until her cargo was taken out of her, be considered as "occasioned by accidents of navigation." Canada Shipping Co. v. British Shipowners' Mut. Protection Association, L. R. 23 Q. B. Div. 342; The Accomac, L. R. 15 Prob. Div. 208; Thames & Mersey Marine Ins. Co. v. Hamilton, L. R. 12 App. Cas. 484; The Mohawk [8 Wall. 153, 19: 406], above cited. In the case at bar, the explosion of the case of detonators, besides doing other damage, burst open the side of the ship below the water line, and the sea water rapidly flowed in through the opening made by the explosion, and injured the plaintiff's sugar. The explosion, in consequence of which, and through the hole made by which, the water immediately entered the ship, must be considered as the predominant, the efficient, the proximate, the responsible cause of the damage to the sugar, according to each of the tests laid down in the judgments of this court, above referred to. The damage to the sugar was an effect which proceeded inevitably, and of absolute necessity, from the explosion, and must therefore be ascribed to that cause. The explosion concurred, as the efficient agent, with the water, at the instant when the water entered the ship. The inflow of the water, seeking a level by the mere Much reliance was placed by the appellee force of gravitation, was not a new and in- upon a recent English case, in which the dependent cause, but was a necessary and in- House of Lords, reversing the decision *of [462] stantaneous result and effect of the bursting Lord Esher and Lords Justices Bowen and open of the ship's side by the explosion. Fry in the court of appeal, and restoring the There being two concurrent causes of the judgment of Lord Justice Lopes in the damage the explosion of the detonators, and Queen's bench division, held that damage to the inflow of the water-without any ap-goods by sea water which, without any negpreciable interval of time, or any possibility lect or default on the part of the shipownof distinguishing the amount of damage ers or their servants, found its way into the done by each, the explosion, as the cause hold of a steamship through a hole which had which set the water in motion and gave it been gnawed by rats in a leaden pipe conits efficiency for harm at the time of the dis- nected with the bath room of the vessel, was aster, must be regarded as the predominant within the exception of "dangers or accidents cause. It was the primary and efficient of the seas" in a bill of lading. Hamilton v. cause, the one that necessarily set the force Pandorf, L. R. 12 App. Cas. 518, L. R. 17 Q. of the water in operation; it was the su- B. Div. 670, L. R. 16 Q. B. Div. 629. There perior or controlling agency, of which the is nothing in the report of any stage of that water was the incident or instrument. The case to show that the sea water entered the inflow of the sea water was not an inter- ship immediately upon the gnawing by the mediate cause, disconnected from the pri- rats of the hole in the pipe; and any such inmary cause, and self-operating; it was not ference would be inconsistent with one of a new and independent cause of damage; the opinions delivered in the House of Lords [461]*but, on the contrary, it was an in-in which Lord Fitzgerald said: "The re cident, a necessary incident and consequence, mote canse was in a certain sense the action the balance were applied with Smith's knowledge, without objection on his part, or that of any other officer or director of the trust company, to taking up notes secured thereby, which had been given by Garretson to acquire the Nebraska & Western bonds, which he afterwards pledged to Tod & Co., and which were exchanged for the bonds of the Sioux City, O'Neill, & Western Railroad in controversy. None of the securities ever stood in the name of the Union Loan & Trust Company. And they were delivered in such form as to enable Garretson to hold himself out as the owner or lawful holder thereof, with full power of disposition. everything belonging or appertaining to said Conveyances by insolvent debtors in fraud The trust company did not own these securities, and did not transfer them in fraud of its creditors, prior to the assignment, so as to entitle the assignee to treat the transfers as void and the securities as belonging to the company. The district judge well said [65 Fed. Rep. 564]: "It is entirely clear that E. R. Smith, the secretary and treasurer of the trust company, dealt with these securities as though he had full authority from the company so to do, and he obeyed Garretson's instructions in regard to the same without demur; and *And it must be remembered that this prc [499] it does not appear that the trust company, ceeding is an attempt on behalf of the holders or any officer thereof, ever objected to such of railroad syndicate paper, which constidisposition of the securities; and, further-tuted only a portion of the liabilities of the more, so far as the evidence in this case discloses, the general management of the business of the trust company was intrusted to Smith, with but little, if any, supervision on part of the directors or other officers of the corporation." The truth of the matter seems to be, as the circuit court held, that, in order that the various properties represented by the stock and bonds should become valuable, it was necessary that the enterprises on which they were based should be carried through, and this required additional funds, to procure which the trust company consented to Garretson's negotiations with Tod & Co., and the debenture company, and the pledging of the urities. 98] The presumption on the facts is that the curities were delivered by the company to Garretson for use, and, if they had ever been pledged to the company, that the pledge was discharged by the voluntary parting with possession. There is nothing to show an intention to limit the use to a hypothecation in subordination to a prior pledge, let alone the question whether any such pledge existed, and the absence of evidence of any as sertion thereof. trust company, to establish equities in the The difficulty with the contention that the The securities were railroad bonds, payable to bearer, and certificates of stock in the names of Garretson and his associates, with transfers indorsed by them in blank; and they were, in large part, sent to Tod & Co. by the trust company, at Garretson's request, with presumably full knowledge that they Certainly, under the circumstances, the were to be used as collateral to loans he was company could not be allowed to set up its procuring, without anything to indicate that alleged title as against third parties taking the trust company had any interest in them, in good faith and without notice. And the or any intimation of such interest. The sesame principle is applicable to its assignee curities did not stand in the name of the and to creditors seeking to enforce rights in trust company, and Garretson did not, in his name. So far as this case is concerned there is nothing to the contrary in the stat- any of his dealings with Tod & Co., assume to ute of Iowa regulating assignments for the act for the company. The mere fact that he benefit of creditors as expounded by the su- cient to call for an inference that he was act preme court of the state. Code Iowa, title 14. chap. 7; Schaller v. Wright, 70 Iowa, ing as such in these transactions, nor did he 667; Mehlhop v. Ellsworth, 95 Iowa, 657. make his requests of Smith in that capacity, Section 2127 of the Code provides: "Any nor were they complied with by Smith as on assignee as aforesaid, shail have as full pow- that theory. er and authority to dispose of all estate, real and personal, assigned, as the debtor had at the time of the assignment, and to sue for and recover in the name of such assignee U. S., Book 43. 171 U. S. 17 was one of its officers was not in itself suffi There was no actual notice, and as the visible state of things was consistent with Garretson's right to deal with the securities as he did, such notice cannot be presumed or 257 1 2. R. 4 C. P. 117; The Southgate [1894] P. 518. |juries to a cargo of sugar owned by the libellant, which had been shipped on or about February 15, 1894, upon the Silvia at Matanzas, Cuba, for Philadelphia, under a bill of lading by which the sugar was "to be delivered in the like good order and condition the seas only excepted)," upon payment of agreed freight, "and all other conditions as per charter party dated New York 31st January, 1894." The loss being prima facie by a danger of the sea, and hence within the exception, the burden of proof was upon the libellant to de-at the port of Philadelphia (the dangers of feat its operation. The Hindoustan, 35 U. S. App. 173, 67 Fed. Rep. 794, 14 C. C. A. 650; The Victory and The Plymothian, 168 U. S. 410, 423, 42 L. ed. 519, 528; Western Transp. Co. v. Downer, 11 Wall. 129, 20 L. ed. 160; Memphis & C. R. Co. v. Reeves, 10 Wall. 176, 189, 190, 19 L. ed. 909, 913. If the loss may as well have occurred by a peril of the sea as by negligence, the libel lant cannot recover. Clark v. Barnwell, 12 How. 272, 280, 13 L. ed. 985, 988; Muddle v. Stride, L. R. 9 C. & P. 380; The R. D. Bibber, 8 U. S. App. 42, 50 Fed. Rep. 841, 2 C. C. A. 50: Searles v. Manhattan R. Co. 101 N. Y. 661. The charter party, which had been made and concluded at New York January 31, 1894, provided that the Silvia, then at Tucacas, Venezuela, should proceed as soon as possible in ballast to Matanzas for a voyage thence to Philadelphia, New York, or Boston, and contained these provisions: "The vessel shall be tight, staunch, strong, and in every way fitted for such a voyage, and receive on board, during the aforesaid voyage, the merchandise hereinafter mentioned (the act of God, adverse winds, restraint of princes and un-rulers, the Queen's enemies, fire, pirates, accidents to machinery or boilers, collisions, errors of navigation, and all other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever during the said voyage, always excepted). *The said party of the second part doth en-[464] gage to provide and furnish to the said vessel a full cargo, under deck, of sugar in bags. The bills of lading to be signed without prejudice to this charter." If the vessel be deemed to have been seaworthy when she broke ground on the voyage, nevertheless the shipowner "exercised due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied." A presumption of competency arises under the circumstances. Butler v. Boston & S. 8. Co. 130 U. S. 527, 554, 32 L. ed. 1017, 1023; Pickup v. Thames Marine Ins. Co. L. R. 3 Q. B. Div. 594. The Harter act exempts shipowners from The Silvia, with the sugar in her lower responsibility for faults in the management hold, sailed from Matanzas for Philadelphia of the ship's appliances, the ordinary use on the morning of February 16, 1894. The and control of which are committed to the compartment between decks next the forecasofficers and crew, even though such misman-tle had been fitted up to carry steerage pasagement may occur prior to sailing, and may leave the ship unseaworthy. The Delaware, 161 U. S. 459, 471, 40 L. ed. 771; The Colima, 82 Fed. Rep. 665; The Mary L. Peters, 68 Fed. Rep. 919; The Flamborough, 69 Fed. Rep. 470; The Alvena, 74 Fed. Rep. 252; The Carron Park, L. R. 15 Prob. Div. 203; The Mexican Prince 82 Fed. Rep. 484; The Glenochil [1896] P. 10. The proper closing of the ports was an act belonging to the management or navigation of the ship. sengers, but on this voyage contained only spare sails and ropes and a small quantity of stores. This compartment had four round ports on each side, which were about eight or nine feet above the water line when the vessel was deep laden. Each port was eight inches in diameter, furnished with a cover of glass five eighths of an inch thick, set in a brass frame, as well as with an inner cover or dummy of iron. When the ship sailed, the weather was fair, and the glass covers were tightly closed, but the iron covCarmichael v. Liverpool Sailing Shipowners were left open in order to light the comers' Mut. Indemnity Asso. L. R. 19 Q. B. partment should it become necessary to get Div. 242; The Warkworth, L. R. 9 Prob. Div. anything from it, and the hatches were bat20, and 145; The Sandfield, 79 Fed. Rep. tened down, but could have been opened in 371; The Castleventry, 69 Fed. Rep. 475, two minutes by knocking out the wedges. note. In the afternoon of the day of sailing, the ship encountered rough weather, and the glass cover of one of the ports was broken,whether by the force of the seas or by floating timber or wreckage was wholly a marter of conjecture, and the water came in through the port and damaged the sugar. The libellant is not in privity with the charter party between the owner and J. H. Winchester & Co. Russell v. Niemann, 17 C. B. 163; Serraino v. Campbell [1890] 1 Q. B. 283. [463] *Mr. Justice Gray delivered the opinion of the court: This was a libel in admiralty, filed June 14, 1894, in the district court of the United States for the southern district of New York, by the Franklin Sugar Refining Company, a corporation organized under the laws of the state of Pennsylvania, against the steamship Silvia, of Liverpool, owned by the Red Cross Line of Steamers, to recover damages for in The decree of the district court dismissed the libel, and was affirmed by the circuit court of appeals. 64 Fed. Rep. 607. and 35 U.S. App. 395. The libellant applied for and obtained a writ of certiorari from this court. It was adjudged by this court at the last term that the act of Congress of February 13, 1893, chap. 105, known as the Harter act, has not released the owner of a ship from the duty of making her seaworthy at the begin ning of her voyage. The Carib Prince, 170 Liverpool Sailing Shipowners' Mut. Indem nity Association, L. R. 19 Q. B. Div. 242; Canada Shipping Co. v. British Shipowners' Mut. Protection Association, L. R. 23 Q. B. Div. 342; The Ferro [1893] P. 38; The Glenochil [1896] P. 10. In the case, cited by the appellant, of Dobell v. The Steamship Rossmore Co. [1895] 2 Q. B. 408, 414, the ship was unseaworthy at the time of sailing, by reason of the cargo having been so stowed against an open port that the port could not be closed without removing a considerable part of the cargo; and Lord Esher, M. R., upon that ground, distinguished that case from the decision of the circuit court of appeals in the present case. Judgment affirmed. closing the iron covers of the ports, it was a fault or error in the navigation or in the But the contention that the Silvia was un- management of the ship. This view accords seaworthy when she sailed from Matanzas with the result of the English decisions upon is unsupported by the facts. The test of sea- the meaning of these words. Good v. Lonworthiness is whether the vessel is reasona- don Steamship Owners' Mut. Protecting Asbly fit to carry the cargo which she has un-sociation, L. R. 6 C. P. 563; The Warkworth, [465]dertaken to transport. The portholes of the L. R. 9 Prob. Div. 20, 145; Carmichael v. compartment in question were furnished both with the usual glass covers and with the usual iron shutters or deadlights; and there is nothing in the case to justify an inference that there was any defect in the construction of either. When she began her voyage, the weather being fair, the glass covers only were shut, and the iron ones were left open for the purpose of lighting the compartment. Although the hatches were battened down, they could have been taken off in two minutes, and no cargo was stowed against the ports so as to prevent or embarrass access to them in case a change of weather should make it necessary or proper to close the iron shutters. Had the cargo been so stowed as to require much time and labor to shift or remove it in order to get at the ports, the fact that the iron shutters were left open at the beginning of the voyage might have rendered the ship unseaworthy. But as no cargo was so stowed, and the ports were in a place where these shutters would usually be left open for the admission of light, and could be speedily got at and closed if occasion should require, there is no ground for holding that the ship was unseaworthy at the time of sailing. Steel v. State Line Steamship Co. L. R. 3 App. Cas. 72, 82, 90, 91; Hedley v. Pinkney & Sons Steamship Co. [1892] 1 Q. B. 58, 65, and [1894] A. C. 222, 227, 228; Gilroy v. Price [1893] A. C. 56, 64. The third section of the Harter act provides that "if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel.' 27 Stat. at L. 445. บ. JAMES A. BRIGGS, Executor of Charles M. Briggs, Deceased, Plff. in Err., AMANDA M. WALKER, and Ohio Valley Banking & Trust Company, Administrator of the Estate of A. L. Shotwell, Deceased. (See 8. C. Reporter's ed. 466-474.) Federal question-act of Congress for the relief of an estate. 1. 2. A Federal question is presented by the de. termination of a state court as to whether the right given by act of Congress to the "legal representatives" of a person is for the benefit of his next of kin, to the exclusion of his creditors, or not. An act of Congress for the relief of the estate of a person, and referring to the court of claims a claim of his "legal representatives," makes the recovery on such claim assets of his estate and subject to his debts and liabilities. [No. 260.] 17, 1898. This provision, in its terms and intent, includes foreign vessels carrying goods to or Submitted April 25, 1898. Decided October from a port of the United States. The Scotland, 105 U. S. 24, 30 [26: 1001-1003]; The Carib Prince, above cited. IN ERROR to the Court of Appeals of the Not only had the owners of the Silvia ex- State of Kentucky to review a judgment of ercised due diligence to make her seaworthy, that court amrming a judgment of the Cirbut, as has been seen, she was actually sea-cuit Court of Jefferson County in said state worthy when she began her voyage. in a suit brought against James A. Briggs, [466] *This case does not require a comprehen- executor, to which Amanda M. Walker and sive definition of the words "navigation" and others were parties in favor of defendants "management" of a vessel, within the mean- Walker and Shotwell for certain sums of ing of the act of Congress. They might not money, and adjudging that moneys in the include stowage of cargo not affecting the hands of Briggs as executor be applied to fitness of the ship to carry her cargo. But the payment of these sums, and of a further they do include, at the least, the control, dur- sun due from Moorehead to Briggs. On ing the voyage, of everything with which the motion to dismiss the writ of error or to vessel is equipped for the purpose of protect- affirm the judgment. Judgment_affirmed. ing her and her cargo against the inroad of See same case below, 19 Ky. L. Rep. 1490, the seas; and if there was any neglect in not 43 S. W. 479. |